Pyle v. Prairie Farms Dairy, Inc.

• Decision Date: 11 September 1989
• Docket Number: 15909,Nos. 15907,s. 15907
• Parties: Deborah Jane PYLE, individually, Francis Pyle, III, Jason Pyle, and Luke Pyle, Minors, By and Through Their Next Friend, Deborah Jane Pyle, Plaintiffs-Appellants-Respondents, v. PRAIRIE FARMS DAIRY, INC., and Mid-America Dairymen, Inc., d/b/a Hiland Dairy Company, Defendants-Respondents-Appellants.
• Court: Missouri Court of Appeals

Page 286

777 S.W.2d 286

Deborah Jane PYLE, individually, Francis Pyle, III, Jason Pyle, and Luke Pyle, Minors, By and Through Their Next Friend, Deborah Jane Pyle Plaintiffs-Appellants-Respondents, v. PRAIRIE FARMS DAIRY, INC., and Mid-America Dairymen, Inc. d/b/a Hiland Dairy Company Defendants-Respondents-Appellants.

Nos. 15907, 15909.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 11, 1989.

F. William Joyner, Mathew W. Placzek, Joyner, Placzek & Francis, Springfield, for plaintiffs-appellants-respondents.

David W. Ansley, James B. Condry, Hall, Ansley, Carmichael & Gardner, Springfield, for defendants-respondents-appellants.

GREENE, Judge.

On July 8, 1981, Francis W. Pyle, II, was killed in an on-the-job accident which occurred at the Hiland Dairy plant in Springfield, Missouri. Pyle, an employee of the Paul Mueller Company, fell to his death while repairing a stainless steel liner of a milk storage tank located in a building on Hiland's premises. Pyle, who was standing on the roof while repairing the tank, the top of which extended through and above the roof, lost his balance and fell backward onto a skylight which collapsed under his weight, causing him to fall through the skylight onto the floor below.

Pyle's survivors, who are his wife and children, sued Hiland Dairy Company and its parent companies, Prairie Farms Dairy, Inc., and Mid-America Dairymen, Inc., alleging that Pyle's death was caused by the negligence of the defendants in that they a) failed to warn Pyle that the acrylic cover of the skylight was not strong enough to bear his weight if he fell into it, b) failed to warn Pyle that there was no bracing on the interior side of the skylight which would prevent his fall to the floor below, c) failed to install the bracing in question that would have prevented the fall, and d) failed to install guardrails adjacent to and surrounding the skylight to prevent persons from falling into it.

After hearing evidence, the jury returned a verdict finding the total amount of plaintiffs' damages to be $600,000, and assessed percentages of fault for Pyle's death at 52 percent for the defendants and 48 percent for Pyle. The trial court's judgment affirmed the jury verdict. All parties appeal, with the defendants urging the trial court erred in 1) failing to sustain their motions for directed verdict and judgment notwithstanding the verdict, 2) allowing plaintiffs to introduce photographs of subsequent repairs to the skylight, and 3) instructional error. In their cross-appeal, plaintiffs contend the trial court erred in submitting to the jury the issue of Pyle's contributory negligence, since that issue had no evidentiary support. We affirm the trial court's judgment.

Since it is the defendants' position that plaintiffs did not make a submissible case, we address their appeal first. Their first point relied on in their claim of trial court error is that there was no evidence of any condition or defect on defendants' roof that caused Pyle to fall, and, therefore, plaintiffs failed to make a submissible case as a matter of law. In order to decide this point, it is necessary that we make a detailed recital of facts in evidence, viewed in a light most favorable to uphold the jury verdict.

Defendants Prairie Farms Dairy, Inc. and Mid-America Dairymen, Inc., d/b/a Hiland Dairy Company, own and operate a dairy plant in Springfield, Missouri. Tanker trucks deliver raw milk to the plant, following which the milk is processed into various forms of dairy products. When the milk is brought to the plant's milk receiving room, it is then pumped into large stainless steel tanks where it is held until it is needed in making Hiland's dairy products. These tanks are called "silos." The silos have outer and inner stainless steel linings. They are cylindrical, and are quite tall, extending from the main level of the dairy floor of the milk receiving room to a point about 10-12 feet above the roof.

Skylights called "sky-domes" had been placed in the roof at intervals so as to provide additional light for the milk receiving room. The skylight's dimensions are 42 X 44 inches. The covers of the skylights are made of acrylic and mounted on a frame that extends 8 to 10 inches above the surface of the roof. The acrylic covers of the skylights are not weight bearing. The defendants knew this, as there had been a hail storm several years before the accident in question during which some of the skylights were damaged. In fact, in one instance the hail stones went completely through a skylight. There was a considerable amount of work activity conducted on the roof in question. The roof held a considerable assortment of equipment, such as air conditioners, motors, etc., and maintenance work was performed on the equipment almost every day. None of the employees whose job duties included working on the roof were aware that the skylights, which were opaque, would not bear their weight. There were no barricades around the skylights, no warning signs, and no safety grids that would have prevented a workman stepping on one of them from falling through it.

Sometime in the spring of 1981, the stainless steel inner liner of one of the silos became damaged. None of the employees of the defendants had the expertise to repair it, so defendants contracted with the Paul Mueller Company, a fabricator of stainless steel products including dairy tanks, to do the job. After examination of the damaged tank, employees of the Paul Mueller Company decided to cut out the damaged portion of the inner liner and replace it with a new piece. Since the tank had both an outside and inside stainless steel shell, it was necessary to cut the top off the outer liner so that when the damaged portion of the inner liner had been cut off, it could be lifted out of the top of the tank and a new piece lowered through the hole and welded into place to complete the repair.

Pyle and Robert Moseley were the two employees of the Paul Mueller Company who were designated to make the repairs. They erected scaffolding inside the tank, which was necessary for them to stand on in order to reach the damaged portion and cut it away. When they finished cutting away the damaged portion of the inner liner, they went to the roof to start cutting through the outer shell of the tank. In order to get to the height where they needed to make the cut, it was necessary that they stand on a ladder. Moseley and Pyle alternated the cutting chore. They would place the ladder against the side of the tank, climb up and make a horizontal cut through the outer shell with a grinder for a distance of about 4 feet, then move the ladder so that they could continue the cut around the cylindrical tank. When the accident occurred, Pyle was cutting. He came down the ladder, and then moved it so he could continue to make his cut. After he did so, the base of the ladder was in close proximity to the skylight. Pyle was standing at the base of the ladder, with his back to the skylight. As he was pulling on the extension cord that led from the grinder to an electric outlet, in order to get a little slack in the cord, he appeared to stumble backward onto the skylight which collapsed under his weight, causing him to fall through to the concrete floor of the milk receiving room which was approximately 19 feet below. The fall killed Pyle.

There was testimony from an expert witness for plaintiffs, who was an architect named Randall Allen, that when skylights are used in roof construction, safety is a factor that should be taken into consideration. He testified that, in his opinion, the skylights on the roof in question were not safe, because they were not designed to hold any load at all, which fact, when coupled with the fact that they were opaque, which made them look stronger than they really were, made them unsuitable for areas where there was considerable human traffic. He also said there was plastic material for skylights available at the time of Pyle's death, strong enough to bear a man's weight, as well as safety grids that could have been placed over the skylights, both of which could be installed at a nominal cost, in a matter of minutes, and which would have prevented the accident.

There is no doubt but that Pyle, as an employee of the Paul Mueller Company, was a business invitee while on the defendants' premises. Defendants, in their brief, concede that plaintiffs' case was submitted under the safe work place doctrine. Such doctrine was codified in the Restatement (Second) of Torts, § 343 (1965). That section reads: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if he a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and c) fails to exercise reasonable care to protect them against the danger. ¹

It seems to be defendants' position that since the incident where Pyle stumbled and fell backward onto the skylight was not caused by any dangerous or defective condition of the roof, they cannot be liable to plaintiffs as a matter of law. They claim by this that the question is whether the defendants' negligence caused the fall, instead of whether such negligence, if any, caused Pyle's death. This is an incorrect view of the law on the subject. The question is not whether Pyle's fall was caused by an unsafe skylight, but is whether his death was caused, or directly contributed to be caused, by an unsafe skylight. Plaintiffs' verdict directing instruction No. 7 reads as follows:

In your verdict you must assess a percentage of fault to defendants Prairie Farms Dairy, Inc. and Mid-America Dairymen, Inc., d/b/a Hiland Dairy Company, whether or not Francis W. Pyle, II was partly at...